Legalizing abortion and child pornography, overturning the definition of marriage, requiring the funding of sex change operations and granting prisoners the vote are just some of the outrageous decisions forced on Canadians, not by elected legislatures, but by unelected courts. Those courts have been stacked with increasingly activist, liberal judges for the past 40 years.
However, that trend may be coming to an end with the election of Stephen Harper’s new Conservative government. In fact, the first action of the Harper government, other than appointing the cabinet, was to replace recently retired Supreme Court justice Jack Major with a new justice who has publicly disavowed the current activism of the courts.
But, Prime Minister Harper has also advanced the nomination process to a place of accountability it has never been, by having his appointee, former Manitoba appeal court judge Marshall Rothstein, appear before an all-party committee of MPs to be questioned on his judicial philosophy.
Despite predictions from supporters of the status quo that the hearing would degenerate into an American-style witch hunt into a judge’s past, as hearings involving past U.S. Supreme Court nominees Clarence Thomas and Robert Bork once did, the hearing on Parliament Hill was quite “civil,” according to media observers.
Yet, as Peter Hogg, Osgoode Hall law dean and adviser to the committee pointed out during the hearing, such American-style scrutiny is not unwarranted, given the tremendous power Canadian judges have attempted to grab for themselves in the years since the Charter of Rights, with its American-style bill of rights, was introduced. The process helps to put some power back in the hands of elected parliamentarians.
For many conservative activists, the hearings probably did not go far enough. The committee was not allowed to vote on the appointment and neither was Parliament. However, as party insiders point out, Rome wasn’t built in a day and Stephen Harper is taking an incremental approach to changing the way judges are picked. More changes to the process will come in the future.
Indeed, given the minority situation the Conservatives find themselves in, opening up the nomination process to a full vote in the opposition-dominated House of Commons could well have meant the latest vacancy on the high court being filled by an extremely left-wing judge.
The prime minister’s success at pulling off the hearing was helped in part by his decision to draw Judge Rothstein’s name from a short list Paul Martin’s Liberals had drawn up. As such, the Liberals were loath to criticize the appointee and found themselves in the awkward position of not being able to say anything negative about the hearing process, either.
Yet, simply hearing from a judge for a few hours before receiving a lifetime appointment to a position of such power is probably not the ultimate solution to ending judicial activism. Among the ideas proposed over the years for holding judges more accountable are electing judges, creating term limits for judges and holding full parliamentary votes on their nominations.
But, if those ideas are too American for critics, Harper may have another idea. Though the issue did not arise in the latest election, in 2004 the Conservative Party’s election policy document provided to candidates resurrected an old Canadian idea about how to deal with activist courts. That document reads, “The Conservative Party will ensure that Parliament is the law-making body of Canada, rather than abdicating that responsibility to the courts. We will establish a judicial review committee of Parliament to prepare an appropriate response to those court decisions which Parliament believes should be addressed through legislation.”
Until 1949, the highest court of appeal for Canadian constitutional matters was the judicial committee of the British Privy Council. Then, the Canadian Supreme Court was increased from six justices to nine and became the final court of appeal.
Under Stephen Harper’s 2004 plan, constitutional cases or Charter challenges, such as those involving the definition of marriage, would be subject to a further appeal to a committee of parliamentarians. Such a move would restore parliamentary supremacy and effectively neuter the activist tendencies of all judges who derive their existing power to make bad decisions from the current lack of accountability to any other authority.
Such a change could hardly be considered radical, given that is how Canada has been governed for most of its history. And Great Britain, from which most of our governmental institutions are derived, still uses such a system today, in fact. The final court of appeal in Britain is not the High Court, but rather a committee of five law lords in the House of Lords, Britain’s upper house of Parliament.
Such a change in Canadian law would probably require enabling legislation of some sort and would be unlikely to pass in the current minority Parliament. However, the prospect of a Conservative majority in the next federal election also increases the prospect of such a change and an end to the shameful era of judicial activism in Canada.